Sentence enhancements based on the offender’s prior convictions (or “criminal history”) are found in virtually all modern sentencing systems (Roberts 2008). The Robina Institute’s Criminal History Enhancements Project examines this aspect of sentencing law and practice in U.S. systems that employ sentencing guidelines. We have focused on guidelines systems in part because such enhancements are more visible in these systems and therefore easier to study. But another reason for our focus is that, although guidelines sentencing has many advantages (Frase 2015b), it may also unduly increase the impacts of criminal history on sentence severity.

This blog post focuses on a particularly troubling feature we have found in guidelines systems: they almost never take into account the fact that offenders with substantial prior records tend to be older, and thus past their peak offending years. This disconnect -- rising sentence severity for offenders whose risk of further crime is declining -- results in an increasingly geriatric prison population, wasted prison resources, and unnecessary hardship for many older offenders.

Nature and extent of the problem

As a general matter, criminological research supports the use of prior record as a proxy for recidivism risk – the more prior convictions an offender has, the more likely he or she is to commit further crimes (see, e.g., Gendreau et al. 1996). But another well-established research finding is called the age-crime curve: the proportion of persons offending, and their frequency of offending, reach a peak in the late teens or early 20s and then decline steadily, with most offenders’ criminal careers ending by their 30s or 40s (Piquero et al. 2007; Sampson & Laub 2003). This pattern holds true even for offenders who have accumulated a substantial number of convictions – as they grow older they, too, commit fewer crimes and eventually desist, albeit more slowly than offenders with fewer convictions (Piquero et al. 2007; U.S. Sentencing Commission 2004).

But while older offenders are becoming less and less crime-prone, their criminal history scores, and thus the severity of their recommended sentences, continue to grow. This phenomenon is especially pronounced in systems or cases where there is no “look-back” limit on the counting of convictions entered many years earlier. The Robina Institute’s comprehensive study of guidelines criminal history formulas (Frase et al. 2015) found that almost half of American guidelines jurisdictions have no look-back limits whatsoever for adult felony convictions; almost three-quarters of the systems lack any look-back limit for at least some felonies (Mitchell 2015). This means, for example, that a 60-year-old offender can have his or her sentence enhanced based on crimes committed at the age of 18. Moreover, even when look-back limits apply (typically washing out priors after 10 or 15 years), the look-back period usually does not begin to run until the offender is finally discharged from the prior sentence (by completion of probation or post-prison supervision); this means that the criminal history score will count offenses committed many years farther back in time than a 10- or 15-year limit would suggest. Finally, no existing guidelines rule adjusts the criminal history score for advancing offender age; indeed, in most guidelines systems judges are not even invited to cite this factor as a reason to “depart” downward from the recommended sentence (Frase 2015a). (This is part of a much broader problem with guidelines criminal history scores and impacts: while judges in all guidelines systems have and exercise authority to depart based on atypical features of the offender’s crime, they are almost never given express authority to depart based on atypical features of the other major determinate of the guidelines sentence -- criminal history.)

The Robina Institute’s analysis of sentencing data obtained from several state guidelines commissions confirms that older offenders tend to have higher average criminal history scores, making them eligible for more severe penalties. For example, a comparison of average scores by age in Minnesota, North Carolina, and Pennsylvania (Hester 2015) found that, while only about 25 percent of sentenced offenders are aged 40 or older, these offenders make up a much higher proportion of offenders in the highest criminal history category -- in these three states the latter proportions were: 36 percent, 55 percent, and 65 percent.

Criminal history sentencing enhancement rules (in combination with severe penalties applied even to first offenders) are producing increasingly aging and expensive inmate populations. One study (Human Rights Watch 2012) found that in 2010 the number of prison inmates aged 55 or older was almost four times the number in 1995 (whereas the total inmate population had grown by “only” 42 percent during that time period); these aging offenders comprised over 8 percent of all inmates in 2010 (versus 3 percent in 1995). The steadily “greying” prison population is a major cause of ballooning prison medical costs; for example, the federal Bureau of Prisons reported that it spent over $1 billion on these costs in 2013, up 55 percent just from 2006 (Hester 2015; see also Human Rights Watch 2012, detailing the reasons for higher medical and other costs associated with older inmates).

What can be done?

One way to address these problems would be to apply an escalating criminal history score discount as offenders grow older, for example: subtract one criminal history point if the offender was 40 or more at the time of the current offense, two points if the offender was 50 or more, and three points if 60 or more, while allowing the sentencing judge to decline to apply these adjustments if the prosecution produces evidence of unusually high risk compared to typical offenders in the applicable age category. This simple change would cause minimal added risk to public safety, while providing substantial savings in correctional costs. For example, one study found that a narrower version of the above proposal – subtracting one criminal history point for Minnesota offenders aged 40 or older, convicted in the main-grid zone in which prison-commitment recommendations are based solely on elevated criminal history -- would have saved the state over $20 million in 2012 (Hester 2015). It should also be noted that this dollar figure is an under-estimate, since it applies the average cost of imprisoning offenders regardless of age (as noted above, aging inmates impose higher than average costs).

Another idea would be to apply shorter look-back periods to older offenders; since their criminal careers are usually winding down, a conviction from many years ago -- even if still within the normal look-back period -- should be assumed to have less recidivism-prediction value than would be the case for a younger offender.

A third way to reduce sentence severity for aging offenders would be to give them (or better yet, all offenders) sentencing credit for recent periods of desistance from crime. Research has shown that, for offenders of all ages, a crime-free gap of 7 or more years between the offender’s current offense and his most recent previous offense means that his or her odds of any further crime are very low (Piquero et al. 2007). This pattern is probably even more pronounced for aging offenders, who are more likely than younger ones to be nearing the end of their criminal careers.

Conclusion

There is a serious disconnect between criminal history enhancement rules and criminal careers research – these rules raise penalties for aging offenders who are past their peak offending years. This disconnect requires change in the ways in which criminal history enhancements are applied to older offenders. Some might object that these enhancements are justified not only by assumed higher risk but also by assumed greater culpability – that a repeat offender is more blameworthy for his latest offense than a non-repeater (or an offender with a less extensive prior record) who commits the same offense. This view is highly contested by some proponents of retributive (just deserts, culpability-based) punishment (Roberts 2015). But even if the desert rationale for criminal history enhancements is accepted, downward penalty adjustments for aging offenders can be justified on a “limiting retributivism” theory; that theory holds that the state is permitted but not required to impose the offender’s full just deserts, and should impose less punishment when there are good practical reasons to do so (Frase 2013; American Law Institute 2003; Morris 1974). Mitigation can perhaps also be justified on the grounds that the experience of imprisonment, and any given number of years spent in prison, are more severe deprivations for aging offenders than for younger ones (indeed, imprisonment may be a cause of premature aging). For all of these reasons, both those based on risk and those based on retribution, criminal history sentencing enhancements should be reduced for older offenders.

References

American Law Institute. 2003. Model Penal Code: Sentencing. Philadelphia: American Law Institute (adopting limiting retributivism as the governing theory of punishment for the Code’s revised sentencing and corrections provisions).

Frase, Richard S. 2013. Just Sentencing: Principles and Procedures for a Workable System (Oxford University Press).

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